Litigants sometimes have to start the divorce race at a sprint: hours, minutes and even seconds can make a difference of millions of pounds, writes divorce lawyer Mark Harper
In the divorce forum shopping stakes, London fully deserves its reputation as one of the best jurisdictions for the economically weaker party, who can end up with a much better deal than if they divorce elsewhere. As a result, there is sometimes a race to divorce in London. International couples with residences in multiple countries can choose where they get divorced. But divorce is not like an afternoon spent shopping on Bond Street or choosing from a Michelin-starred menu with endless à la carte options.
Splitting couples typically have one or two choices as to where they can issue proceedings, each of which could produce dramatically different pay-outs. For the winner, much can depend on who files where first. As unseemly as some might see it, to ensure a good deal, or at least the possibility of a good deal, litigants sometimes have to start the divorce race at a sprint: hours, minutes and even seconds can make a difference of millions of pounds.
The party with fewer assets might be awarded much less money when divorcing outside England and Wales, including Scotland. It is more than 300 years since England and Scotland joined together as constituent member countries of the United Kingdom under the Act of Union in 1707. However, both countries’ laws can be very different, as is the case with divorce.
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A recent example of how couples can try and exploit differences between the two has arisen in the divorce proceedings of Charles Villiers, a descendent of Mary Tudor and related to the Duchess of Cornwall, and his estranged wife Emma.
The Villiers are currently engaged in a legal battle about whether arguments over their divorce settlement should be heard by a court in England or Scotland. For all but one year of their 17-year marriage they lived together as man and wife in Milton House, located in Dunbartonshire, Scotland.
The Villiers married in 1994 and then separated in 2012. Two years later, Mr Villiers filed for divorce in Scotland. But three months after that, Mrs Villiers, who had by then moved to England, then applied to the court in England seeking financial maintenance of £10,000 a month. On this point, the laws of the two countries are quite different, in particular in relation to maintenance. In Scotland there is a limitation period of three years in maintenance pay-outs. On the other hand, in England, a divorcee is able to secure financial support from a former spouse for the rest of her life.
Sitting in London, Mrs Justice Parker ruled in March 2016 that the English High Court did have the power to help Mrs Villiers because by then she had become ‘habitually resident’ in England. Pending the finalising of the divorce and her legal bills, the judge ordered Mr Villiers to pay her £5,500-a-month in interim maintenance payments.
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Mr Villiers has now challenged that ruling in the Court of Appeal in London, arguing that an English judge had no right to periodical payments in England when there was an ongoing Scottish divorce. Meanwhile, lawyers for Mrs Villiers argued that EU regulations now supersede the ‘historical’ approach, whereby issues regarding divorce and maintenance should be dealt with together by the courts of a single country.
Mr Villiers has said that Mrs Villiers was ‘trying it on’. If she wins, he added, England will become ‘the maintenance capital of the United Kingdom’ and face a slew of divorce cases from the other home nations.
Multi-jurisdictional divorces can be technical and complex. Brexit has further exacerbated the state of flux surrounding such jurisdictional issues. However, as existing EU law is likely to be incorporated into English law after Britain leaves, the position may well remain the same, at least for a period. And in forum shopping for divorce, London is likely to continue to reign supreme.
Mark Harper is a partner at Hughes Fowler Carruthers. This article is an extract from Hughes Fowler Carruthers’ Expert Guide to Divorce & Money
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The curious case of the Villiers’ ‘divorce tourism’
England vs Scotland – where should wives divorce?
